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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10190
Experience:  Barrister 17 years experience
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I have been building an extension, based on fixed price contract.

Customer Question

I have been building an extension, based on fixed price contract. Everything was going very well (quality of the work was excellent and then realised that , that I had paid the majority of the money and the deliveries / installation slowed down and promises started to be broken. In my last text to the builder I asked when he was going to install the boiler / guttering and complete the roof tiles - and he asked me for the final 5% payment, which I have refused. Do I have a legal position (no signed contract - all I have is documented texts)
Submitted: 2 years ago.
Category: Law
Expert:  Buachaill replied 2 years ago.
Customer:

1. At the outset, I appreciate your concerns that the work get done before you pay over the final instalment of the price. However, in law, there is nothing which lays down rules as to when payment occurs other than the simple rule that payment in full occurs when the work has been completed. Here you would be very foolish to pay over the final 5% without having the work completed to your satisfaction. Otherwise the work might be left unfinished with a full snag list to be completed. Accordingly, you should simply tell the builder that payment in full will occur when the work is completed and you are relying upon usual practice in that 5% will be withheld until completion of any snag list which occurs. I would also advise you to be on your guard that the builder does not walk off without completing the works. That is a most basic reason you should not pay him in full before the work is completed. So stand your ground and wait for the work to be completed before you pay the final instalment of 5%.

JACUSTOMER-nd8w2jd4- :

What are my legal options if he then refuses to complete the work- my biggest worry right now is we are now moving into winter and we have no heating and the tiles on the roof are missing, leaving the house potentially open to the elements. Parts of th ehouse are cold and damp and both my wife and I have had extended viral infections which have been exacerbated by the conditions. Further more the new side of the house is now covered in damp and mold as a result of no guttering

Customer:

2. Your remedy if he does not complete the work is not a legal one. You need to immediately get a new builder and get them to complete the work. I regret to say that this will mean further expenditure, for which you will sue the original builder. This is how the matter will be handled. Your other alternative is to pay the 5% over and hope the works get completed. This leaves you vulnerable to the works also not being completed fully as not only might the builder demand more money to finish but also he may not complete any snag list which arises.

JACUSTOMER-nd8w2jd4- :

So my challenge is that (other then the 5%) I have no money to complete the works...........

Customer:

3. Yes. You should have withheld more from the builder to ensure that the works were carried out. It was foolish to give the builder so much money and still have so much work left to complete.

JACUSTOMER-nd8w2jd4- :

Is it not possible to take him to a claims court - I have texts documenting requests for money for purchases of items that were then not delivered also dates of cash payments....can I possibly "threaten" him with HMRC at least as leverage

Customer:

4. That is crazy. You would be very foolish to threaten some builder so long as you want them to complete the work. You certainly won't get any work done if you do that. Learn the lesson for the future. But don't get into a direct row with the builder when you are in a weak position as the builder has already outmanoevered you.

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